We don't wanna be sued
by Anna Cain
"Seeing where the boy was so obviously looking, Voldemort couldn’t help but be surprised. He had not expected the innocent curiosity that Harry was displaying. Harry tried hard not to moan as Voldemort stroked him. How was it possible that the touch of this evil man could feel so wickedly good?”
Somewhere on YouTube is a clip of Ralph Fiennes, the sexy British actor who plays Lord Voldemort, reading that excerpt in his sexy British voice. Harry Potter erotica is just one of many subgenres in a vibrant fandom whose nerdiness has not diminished with time. Every day, Muggles around the world write fanfiction, upload fanart and, yes, read Potterotica. Seven years have passed since the publication of “Harry Potter and the Deathly Hallows,” but Muggle fascination with the Wizarding World has not dissipated.
The best way to mark yourself as a Potterite, other than by scribbling a lightning bolt scar on your forehead in eyeliner, is to publish fanfiction. Though mocked in some circles, fanfiction can be as tantalizing as, I don’t know, Romilda Vane (only after Ron drinks that love potion, of course). Fanfiction lets writers engage with what is, to our generation, basically a sacred text. Hated plot twists can be smoothed away, favorite pairings shared with the world; even the grave is not final. More enticing, fanfiction offers a ticket into an international network of friends just as nerdy, just as tireless, just as devoted as you. Fanfiction.net, the largest archive, lists over 695,000 stories for Harry Potter alone.
That’s 695,000 stories, all drawing from copyrighted material. How many shelves of the Restricted Section would that fill?
Look at the back of a DVD, collectible figurine or LEGO Harry Potter video game and you will see the following disclaimer: “Harry Potter characters, names and related indicia are trademark of Warner Bros. Entertainment, Inc.” In short, Harry Potter is protected by law. But don’t worry, we fanfiction writers, who obviously consult copyright law before we publish, have a few defenses at the ready.
Spoofs are exempt from copyright restrictions, hence the mass of “Twilight” and “Fifty Shades of Grey” (which, ironically, started as a fanfic of “Twilight”) parodies. Although most fanfictions do not mock the canon, this is a useful defense for those reimagining or recasting the series. “Harry Potter and the Philosopher’s Objectivism,” an attempt to translate Rowling into Rand, is therefore legal (“Everything that is possible is fair,” Harry reminded Ron gently. “If he is able to purchase better equipment, that is his right as an individual. How is Draco’s superior purchasing ability qualitatively different from my superior Snitch-catching ability?”).
Additionally, copyright violations are permitted when the work has undergone significant transformation. Legal scholar Rebecca Tushnet, who recently published an article on fanworks for the Georgetown University Law Center, describes transformation as a concept that “takes many forms, from critique to celebration to reworking a text so that it better addresses the concerns of a specific audience.” Fortunately for us, this leaves a Hagrid-sized loophole, or maybe a loophole large enough to fly an enchanted Ford Anglia through (I’m sorry, I’ll stop). That sultry love-scene between Harry and Voldie has fundamentally altered how those characters would behave in the original canon, thus transforming the work.
The law presents many possible loopholes, all as confusing as the time paradox at the end of “Prisoner of Azkaban.” Copyright statutes list numerous exceptions, including educational purposes, criticism and a piece of patent law described as “fair use.” The court, or the Wizengamot if you prefer, determines fair use by four factors: “The purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit education purposes; the nature of the copyrighted work; the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and the effect of the use upon the potential market for or value of the copyrighted work.”
Rather than wade through legal language as opaque as the Room of Requirement after Draco Malfoy has thrown a handful of Peruvian Instant Darkness Powder, most fanfiction writers take a simpler route. At the start of most stories, the author includes a rather obvious disclaimer that he or she is not, in fact, J.K. Rowling. That unpleasant business out of the way, we can move on to the rest of the story, perhaps an erotic Dramione slumber party.
For the most part, fanfiction writers do not fear prosecution. Stories generate no profit for the authors. Even if Warner Bros. censored benign copyright infringement, users can be identified only through a username (typically a “Firefly” reference no prosecutor will get). The greatest deterrent for fanfiction comes, in fact, from the creators themselves. George R.R. Martin, author of the acclaimed “A Song of Ice and Fire” series, calls fanfiction “a lazy way to go,” and says it bothers him to craft deep characters and then see “some fan writers take them over and make them do things, to my mind, that are wildly out of character.” In respect to his wishes, writers have published only 5,000 “Game of Thrones” stories, slightly more than the sum total of Biblical fanfiction.
Fanfiction’s greatest hurdle is arguably not those Umbridgey Warner Bros. executives, but the genre’s own poor reputation. Aside from a few spam detectors (no one wants to read a story in which Harry tells Ron about an exclusive new weight-loss supplement currently available in the Muggle world), there are no barriers to publication. No regulations, no helpful Cipher editors. Incoherent, misspelled sentences flow from a drunk writer and are instantly broadcast to the world. A few months ago, when J.K. Rowling crashed servers around the world to deliver a new Harry Potter short story that turned out to be a brief gossip column from the pen of Rita Skeeter, underwhelmed Muggles delivered the greatest insult imaginable by deriding this piece as “basically fanfiction.” Unfortunately, this stigma creates a vicious cycle, wherein talented and conscientious writers are driven away by fanfiction’s poor reputation, thus weakening the entire oeuvre.
Overt censorship of fanfiction is almost unheard of. In fact, the genre might be stronger if it were a bit more restricted. However, other facets of the Harry Potter fandom face more pressing legal issues.
In 2012, Colorado College performed “A Very Potter Musical,” a viral fanwork originally written by the Starkids, a club of quadruple-threat prodigies at the University of Michigan. Every segment of the original musical has scored at least five million YouTube hits, but fans wanted to relive the magic in a more portable format. How can we endure long roadtrips without jamming to “Get Back to Hogwarts?” Who could survive a breakup without listening to “Different As Can Be,” Voldemort and Quirrell’s heart-wrenching duet of forbidden love?
Starkid fans got their wish. Today, you can burn the soundtrack, find that Jedi cloak you wore for Halloween in 7th grade, call your friends and then run around the street dueling to the beat of “Voldemort is Going Down.” This is all thanks to “A Very Starkid Album,” available on iTunes for $9.99.
Just so we’re all on the same page, students at the University of Michigan are directly profiting from J.K. Rowling’s copyrighted material. The result: a YouTube video of Harry Potter, Remus Lupin and Arthur Weasley singing the Starkid original hit, “We Don’t Want to Be Sued.”
Starkid is not alone in making a few gold galleons off the Wizarding World; iTunes is also home to mainstream wizard rock bands like “Draco and the Malfoys” and “The Whomping Willows.” If fanfiction were a legal gray area, wizard rock is as murky as the Black Lake during the second Triwizard challenge (really, I'll stop).
Although Warner Bros. could censor them, “wrock” bands have faced surprisingly few legal hurdles. One theory is that even though the bands use copyrighted character names, the artists have engaged in significant transformation. In short, the songs are new creative property. Bands could also use the parody defense, as any musical starring a shirtless, tap-dancing Voldemort certainly qualifies as a spoof.
It is more likely that Warner Bros. allows benign copyright infringement to generate more profit for themselves. Fandoms are communities separated by geography but knit together by shared obsessions. When you listen to wrock or write fanfiction, you join a club that feeds on its own energy. By letting the fans cycle deeper into obsession, Warner Bros. encourages us to collect Sirius Black action figures, or decide it’s symbolic to watch “Deathly Hallows” in theaters seven times, or make a pilgrimage to the Wizarding World (or, like me, shamelessly do all three).
The most important question about the fandom may have nothing to do with its legality and everything to do with its appeal. Why, when fanfiction writers have seven sublime books and eight passable movies, do we gravitate to a shoddy imitation of the original?
Often, Harry Potter fanfiction explores aspects of the series J.K. Rowling left underdeveloped. For example, one of the strongest communities within the fandom focuses on Marauder-Era Hogwarts, a vibrant time of which we saw too little. Fans also offer a new and imaginative approach to J.K. Rowling’s world. Have you ever questioned Harry’s paternity? Wanted more information on the palpable sexual tension between Voldemort and Bellatrix? Daydreamed about a world in which Sirius Black had raised Harry? You can find any possible permutation in the world of fanfiction, from sentimental Ron/Hermione pieces, to a Dumbledore/Sorting Hat/Dobby love triangle so disturbing it needs a trigger warning.
In many communities, fanfiction is used to modernize or liberalize the original. Switching the gender or sexuality of main characters is a common way to make a work more progressive. Another often overlooked benefit of fanfiction is its role in encouraging young writers. Thanks to the easy publication process and strong support network, as well as the pre-existing plots and characters, fanfiction is an easy way to for inexperienced writers to hone their skills. Tushnet notes that “the social value of hundreds of thousands of unauthorized Harry Potter-inspired stories rests not merely in the stories’ critical potential in challenging the sexual, racial and political assumptions of the original, but also in the skills that fans learn while writing, editing and discussing them.”
Fanfiction adds a powerful and unprecedented change to the relationship between creator and fan. Texts are no longer held in stasis, but are actively tweaked and altered. Readers, by subverting patriarchal undertones and realigning the text with their own value systems, become co-creators. Often, the fan dialogue spills off the Internet and has an influence on the greater work. When Vince Gilligan brought back two “Breaking Bad” side characters at the suggestion of a 16-year-old viewer, he joined a long list of creators who have altered their work after fan pressure. Though over-eager fandoms risk usurping the power of the author, the work is often improved by a constant, transformative dialogue.
So until the day we look into the Mirror of Erised and see a world where fanfiction can abide by clear legal guidelines, we’ll just keep singing the theme song of those who dally beyond the canon:
We don’t wanna
We don’t wanna be sued
We weren’t tryin’
Tryin’ to be rude
We never wanted to fight
Misuse, and legal issues, and copyright
That we’re just fans.